You can never have enough Gangs of Eight, right? So thinks Sen. Chuck Schumer. From The Hill:
Sen. Charles Schumer (D-N.Y.) on Sunday proposed a new bipartisan “Gang of Eight” to draft a bill to create guidelines for future investigations of media leaks by the government.
“I proposed along with [Sen.] Lindsey Graham [R-S.C.], we’ll be announcing that we have four Democrats, four Republicans, another Gang of Eight,” said Schumer on CBS’s Face the Nation. “I love these gangs of eight I guess.”
It was very unclear to me how this proposed shield law would have changed anything, and of course, it wouldn’t have, and the timing seemed awfully convenient. Right after the news that the Obama administration has a war on the press has been released, they decide they need another law. Unfortunately, it’s unnecessary. On May 14, 2013, the Reporters Committee for Freedom of the Press sent a letter to Eric Holder, citing all the existing statutes and regulations that govern subpoenas to the press. From the Washington Post:
Subpoenas of the news media for testimony and evidence are governed by theAttorney General’s guidelines found at 28 C.F.R. § 50.10 and incorporated into the U.S. Attorney’s Manual. See § 9-13.400. These guidelines were enacted in 1972 and were expanded specifically to cover telephone records in1980. They were developed to accommodate both the interests of the government in prosecuting crime and the First Amendment interests in reporting on issues of public concern. We know this to be true because theReporters Committee played a role in their promulgation. In this instance,where the Department subpoenaed two months of records related to 20telephone lines, including records from major AP bureaus and the home phone and cell phone records of individual journalists, the Department appears to have ignored or brushed aside almost every aspect of the guidelines. Each one merits specific review.
Narrow scope of the subpoena: Section 50.10(g)(1) requires that a subpoena “should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.” The available evidence shows that no such constraints were applied here. Instead of being directed at relevant records on a limited topic for a closely circumscribed time period, the subpoena appears to have covered all records that could be relevant so that prosecutors could plunder two months of newsgathering materials to seek information that might interest them.
Seeking information from alternative sources: Sections 50.10(b) and 50.10(g)(1) require the Department to take “all reasonable alternative investigative steps” before subpoenaing phone records. Although the public is not in a position to know what alternatives were pursued, the sheer breadth of this subpoena suggests that it was an initial investigative step taken as part of a prosecutor’s desire to gather up even the most remote materialwhen beginning an investigation.
Obligation to inform and negotiate: Section 50.10(d) requires federal prosecutors to disclose their intent to pursue a subpoena and negotiate with the news media in “all cases” involving telephone records. Only if prosecutors determine that such negotiationswould “pose a substantial threat to the integrity of the investigation” are these obligations removed. The purpose of such an exception is to ensure, in the rare inquiry where there is a reason to be concerned about the preservation of evidence, that records are not lost or destroyed. By deciding in this case involving one of the nation’s oldest and most respected news organizations that a subpoena would pose such a threat, the Department has severely harmed its working relationship with the news media, which time and time again have undertaken good-faith efforts to cooperate with government lawyers in a way that protects the public’s interest both in law enforcement and in independent and autonomous newsgathering.
So basically the administration wants another law that they can disregard.
Let me say it again. Nice try.